Matthew Rafferty

Your Rights in the Workplace: Drug and Other Workplace Testing

According to Grand View Research, Inc., the global drug testing market is predicted to be valued at $11.7 billion by 2028. Workplace drug testing has been commonplace for people in many industries for years, due, in part, to the stigma around drug and alcohol use.

New Jersey and many other places in the United States have legalized recreational drug use, which can complicate testing incentives and schedules.

When it comes to workplace drug testing, you have your rights. The knowledgable employment attorneys at McOmber McOmber & Luber can explain your rights and help you keep your job and keep employees safe in the workplace.

What Are Recreational Drug Use Laws in NJ?

New Jersey legalized recreational marijuana use on August 19, 2021. The law is called the Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization (CREAMM) Act. Adults aged 21 and older are now able to carry, purchase, and use cannabis legally.

This act does not discuss hiring practices around marijuana use. However, New Jersey passed a provision stating that employers must not take any disciplinary action against any employee who uses cannabis items of any kind. In addition, no disciplinary action may be taken against an employee who has a positive test of any kind for cannabis use.

Employers may only act against an employee if there is reasonable suspicion that the employee has used or been impaired by cannabis use on the job. A reasonable suspicion must be determined by a certified Workplace Impairment Recognition Expert (WIRE). However, as of July 22, 2022, no regulations are in place for certifying WIRE employees.

What Are the Different Types of Workplace Drug Testing?

There are many different types of workplace drug testing. Drugs an employer can test for, include but are not limited to:

Cannabis/THC
Amphetamines (which can include methamphetamine and MDMA, otherwise known as ecstasy)
Cocaine
Opiates (such as heroin, morphine, codeine, oxycodone, etc.)
Phencyclidine, otherwise known as PCP

There are also different methods employers may use to test for these types of drugs, each with its own pros and cons.

Urinalysis

Urinalysis is the technical term for urine testing. This is the least invasive and the most used test.

This method tests for metabolites in a person’s system. Metabolites are residues from drugs that indicate a person has taken those drugs in the recent past. For occasional drug users, metabolites may appear up to one week after the drug was taken – for frequent users, they may stay in your system for a month or more.

It’s important to note that urinalysis does not show whether a person is under the influence at the time of testing, which is why it should not be used to determine disciplinary action.

Hair Testing

Hair testing is the most accurate form of drug testing. The test can still detect drug use even with dyed, cut, or bleached hair. Hair testing can detect drugs in a person’s system for up to 90 days after use.

It is also the test that can provide the most specific information, including what drug a person took, how long they took it, and when they discontinued their drug use.

Oral Fluid Testing

Oral fluid testing is when you use a mouth swab to collect a saliva sample. These are cost-effective and quick, and you can complete them at work easily. They are best for determining drug use from a few minutes to up to 48 hours prior.

Consent

Employers may only administer drug and alcohol tests with their employees’ consent. Consent to drug testing may only be in written form and multiple consent forms are needed for alcohol, drugs, and other testing.

If you are already working for a company when it introduces drug and alcohol testing, you do not have to agree to these changes. Testing must be in an employee’s contract when they agree to the terms of employment.

If you refuse a test and an employer still tries to make you take one, you may resign and claim ‘ your reason of unemployment. Constructive dismissal is when a worker leaves their job due to inappropriate employer conduct.

Impact on Employers

Employers may not refuse employment solely on an applicant’s use of recreational or medical marijuana. Employers also may not refuse employment based on previous marijuana charges, arrests, or convictions.

Violating these laws result in a fine of $1000 for the first offense, $5000 for the second offense, and $10,000 for each further offense. These are currently the only penalties in place for violating this provision.

There is still much gray area in the laws surrounding marijuana use in the workplace. However, it is possible in the future that taking disciplinary action against employees due to marijuana use can count as workplace discrimination. We encourage employers to seek legal counsel before taking disciplinary action against marijuana users.

Employers are allowed to conduct drug tests randomly, on reasonable suspicion of drug use in the workplace, prior to employment, or after accidents. The drug test must be one of the scientifically reliable tests listed above, and a WIRE-certified employee must conduct the testing.

Always Know Your Rights

The new marijuana laws in New Jersey mean that workplace drug testing is trickier than in previous years. However, staying informed about these laws will help you take the correct actions as both an employer and a worker.

When you need counsel in New Jersey, look no further than McOmber McOmber & Luber for all your legal needs. Contact us by phone or on our website for a free consultation with our experienced lawyers today.

Every employer’s worst nightmare is losing intellectual property or trade knowledge to their competitors. For years, a noncompete clause served to keep proprietary knowledge from leaking to competitors. But now, all of that may change after an FTC proposal to ban this practice.

There are many arguments for and against noncompete agreements. But the consensus, especially by employees, is that they limit employment opportunities without good reason. The law is coming down on their side, and we will see massive changes as a result.

In this guide, we will discuss noncompete clauses in contracts. Here, you can learn how potential FTC rules to ban them could affect you.

What Is a Noncompete Clause?

A noncompete clause, or non-compete agreement, is a special contract. This is a contract between the employee and employer. A noncompete prevents that employee from working with any direct or indirect competitors.

No two non-competes are the same. But they prohibit working for a competitor during or after one’s employment at the company. Even if the employee terminates their employment, the noncompete still applies for the contracted period.

Here is a noncompete clause sample of what it may include:

A date that establishes when the agreement begins
A justified reason for making the agreement
A window during which the employee cannot work for competitors

Some form of compensation if the employee obeys the terms (optional)

To be clear, not all noncompete agreements include remuneration. Even then, the remuneration may not be sufficient.

Which Industries Use Noncompetes?

Noncompetes affect a wide range of industries. These can be high-level employees such as engineers and executives. But it can also affect smaller-scale jobs such as hairstylists and workers in a warehouse.

Often, employees do not have a choice in signing a noncompete. If they fail to sign it, then the employer simply will not hire them. Employees who refuse to sign noncompetes rob themselves of many valuable opportunities.

Arguments Against Noncompete Clauses

Many employees find a noncompete to be unfair, unethical, and exploitative. Even in the event of remuneration, it can make obtaining new work difficult. It enables predatory businesses to keep a tight rein on employees, past and present.

Noncompetes can also prevent an employee from beginning their own business. Others suggest that it reduces industry innovation and is a tactic for suppressing wages.

There are also significant legal issues if an employee breaches the contract. This can lead to lengthy legal battles between a company and its former employee. It can introduce significant financial strain if an employee must pay legal fees to defend themselves.

Are Noncompetes Enforceable?

While many may view noncompetes as unethical and questionable, there is some good news. Just because an employee breaks their noncompete does not mean they are in peril of consequences. A court will decide whether to uphold noncompete clauses depending on the situation.

There are a few criteria that courts usually use to assess noncompetes:

If the clause is reasonable
If the business has a legitimate protectable interest
If the noncompete makes it impossible for the employee to make a living

How long the terms of the noncompete run for
If the clause prevents employees from doing work unrelated to that specified in the contract
If the employer benefits by having the noncompete, at the employee’s expense
If the compensation is not worthwhile

In many cases, a court will throw out a noncompete. This is usually because the terms are unreasonable, or there is insufficient compensation. Clauses that include no compensation usually get immediate dismissal.

One could say that the advantage is with the employee. The employer does need to provide good reason and compensation, and not restrict the employee’s opportunities. However, a noncompete is often used against employees.

The FTC Proposal to Rule out Noncompete Agreements

For the very reasons above, the FTC is coming down against noncompete clauses. They claim that they violate Section 5. This section of the Federal Trade Commission Act allows individuals to freely change jobs.

Noncompetes, therefore, limit an individual’s opportunities.

The core of the argument is that employees are losing billions in wages per year. They estimate that these noncompete affects at least 30 million Americans and cost them approximately $30 billion in wages.

The FTC proposal would ban most new noncompete agreements and nullify most existing ones. Noncompetes, after this ruling, may only exist in a small percentage of situations.

However, this ruling is strictly for noncompete agreements. It does not cover things like nondisclosure agreements. All of this follows legal precedent after dozens of cases of oppressive noncompetes being used against employees.

How Does This Affect You?

As an employee, this is particularly good news. Anyone who has worked in an industry where noncompetes are standard knows how oppressive these contracts can be. There are very few situations where noncompetes truly benefit employees.

As employers, this means many businesses will have to adapt. Since they cannot prevent employees from working elsewhere, the onus is on them to retain their employees. We may see employee wages and benefits become more enticing to retain them for longer.

Do keep in mind that this ruling is not yet official. At the time of writing, the FTC seeks broad public comment. Depending on the response, we may or may not see this rule come to fruition.

Seek Legal Advice from McOmber McOmber & Luber

For decades, the noncompete clause was a bludgeon that employers used to control intellectual property and skilled labor. Thanks to the FTC ruling against them, it may soon be illegal to require or enforce most noncompetes. This proposal could benefit employees in a wide variety of industries.

If you have an onerous noncompete with a former employer, you may be concerned about legal repercussions. Visit us at our Red Bank, Marlton, or Newark office to learn more.

Five Tips for Navigating Wage and Hour Law as a Warehouse Employee

According to Zippia, there are almost 1.9 million general warehouse workers in the U.S. It makes sense since warehouse employees are a vital part of the supply chain.

They ensure that products are stored and shipped efficiently. However, navigating Wage and Hour Law can be challenging, particularly for those who may be new to the industry.

This article will provide five tips for warehouse employees to understand and comply with the Wage and Hour Law, so they can ensure they are being paid fairly and working in compliance with the law.

Read on to make sure you claim the wages you deserve.

1. Know Your Rights

The first step in navigating the Wage and Hour Law is to understand your rights as an employee. Under federal labor laws, you are entitled to a minimum wage of $7.25 per hour.

Additionally, you are entitled to overtime pay if you work more than 40 hours in a workweek. Overtime pay is calculated at one and a half times your regular rate of pay.

It is important to note that some states have their own minimum wage laws that may be higher than the federal minimum wage. If this is the case, you are entitled to the higher of the two wages.

Another important right you have as a warehouse employee is the right to take rest and meal breaks. Employers are required to provide rest breaks of at least 10 minutes for every four hours of work, and meal breaks of at least 30 minutes for every five hours of work. If your employer is not providing these breaks, they may be in violation of the law.

2. Keep Track of Your Hours Worked

One of the most important things you can do to protect your rights under the Wage and Hour Law is to keep track of your paid hours. This means keeping a record of when you start and end your shifts, as well as any breaks you take. This will help you to ensure that you are being paid correctly and that you are receiving overtime pay when you are entitled to it.

It is also a good idea to note that if your employer is not keeping accurate records of your hours, they may be in violation of the law. Under the Fair Labor Standards Act (FLSA), employers are required to keep accurate records of the hours worked by their employees. If you believe that your employer is not keeping accurate records, you should speak with a lawyer or contact the Department of Labor.

3. Understand Your Pay Stub

Another important tip for navigating the Wage and Hour Law is to understand your pay stub. Your pay stub should show your gross pay, which is the total amount of money you are paid before any deductions are taken out. It should also show your net pay, which is the amount of money you take home after deductions are taken out.

Your pay stub should also show any deductions that were taken out of your pay, such as taxes, insurance, and retirement contributions. If you see any deductions that you do not understand, you should speak with your employer to get an explanation.

4. Know Your Options for Recourse

If you believe that your rights under the Wage and Hour Law have been violated, it is important to know your options for recourse. The first step you should take is to speak with your employer.

Explain the issue and give them the opportunity to correct it. If the issue is not resolved, you can file a complaint with the Department of Labor. They will investigate the complaint and take appropriate action.

Another option is to file a lawsuit against your employer. However, it is important to note that this can be a long and difficult process.

If you are considering this option, you should speak with a lawyer who specializes in Wage and Hour Law. They will be able to advise you on your rights and the best course of action.

5. Continually Educate Yourself

If you want to get to grips with the Wage and Hour Law as a warehouse employee, you need to continually educate yourself. Stay informed about changes in the laws and any new regulations that may affect your rights. Furthermore, it is helpful to be familiar with common wage and hour violations, such as failing to pay overtime or not providing rest and meal breaks.

You can educate yourself by reading articles and publications, attending seminars or webinars, or by speaking with a lawyer or a representative from the Department of Labor. By staying informed, you will be better equipped to understand your rights and to take action if you believe they have been violated.

Additional Tips to Consider

The five tips outlined in the article are important considerations. There are a few other things to keep in mind when thinking about the Wage and Hour Law for warehouse workers.

These include:

Be aware of the difference between exempt and non-exempt employees
Look into the laws surrounding independent contractors
Keep records of everything concerning your payments
Don’t be afraid to seek legal assistance when you are unsure

Concerning the last point, if you believe that your rights under wage and hour laws have been violated, it may be in your best interest to seek legal advice. A lawyer who specializes in wage and hour law will be able to advise you on your rights and the best course of action. If you are considering filing a lawsuit, it is essential to have legal representation.

The Wage and Hour Law Explained for Warehouse Workers

The Wage and Hour Law is in place to ensure that employees are treated fairly and that their time is respected. As a warehouse employee, it is important to understand your rights under these laws.

At Red Bank Legal, we have a reputable team of experts that can help you with any wage concerns. Get in touch today to find out more.

Did you know that freelance workers have contributed an estimated $1.2 trillion to the American economy?

More and more workers are going freelance instead of working as how we traditional define “employees”. As a worker and as a business, there are pros and cons to each. Before you decide to work with a freelancer, it’s important to understand what you’re signing up for.

Are you wondering what the differences are between employees vs. independent contractors? Keep reading to learn all about the three key differences.

1. Autonomy

One major difference between an independent contractor and an employee relates to how much creative freedom they have. Often not discussed or perhaps misunderstood, this distinction makes a huge difference knowing that an independent contractor usually has much more autonomy with their creative process as long as they deliver the agreed-upon service or product.

The business that’s contracting with the independent worker can give them a task or project, but they won’t give them strict guidelines relating to how they do it. The timeline and work hours tend to be less rigid as well.

2. Payment, Benefits, and Taxes

Unlike an employee contract, an independent contractor agreement doesn’t come with a salary. Instead, a business pays the contract for each project or by an agreed upon hourly rate. The payment can come before the work is completed or after.

An employee gets paid often by the hour and is on the payroll. Aside from hourly wages and a salary, an employee often also has health insurance and other benefits. This employer-based benefit is different from independent contractor insurance which is the responsibility of the contract worker.

Don’t forget that payroll withholds some payments from an employee because those portions will go to taxes. Conversely, an independent contractor is responsible for paying their own taxes as a freelance worker. .Independent contractor income is normally reported on a 1099 tax form.

If you’re ever unsure of something or suspect reporting or payment discrepancies, you can always seek the counsel of a legal professional.

3. Training

An employee is often seen as a long-term investment for the organization. By giving them the appropriate training, a business hopes that they’ll rise in the ranks and do their best to help grow the company in return.

This mindset doesn’t also apply to an independent contractor. These types of workers are often expected to already be familiar with whatever services they’re offering.

Are You Ready to Hire Independent Contractors?

If you encounter any issues relating to the classification of one type of worker over another, you can consult with an established and reliable law firm. Our team of legal professionals specializes in employment contracts, business law, and so much more.

You’re more than welcome to reach out to us for a free consultation. We look forward to putting our seasoned team to work representing your case.

Your Rights in the Workplace: Illegal Discrimination

Over half of all employees report having experienced discrimination at their current workplaces. While we like to believe that employers who discriminate are few and far between, this couldn’t be further from the truth.

Too many people don’t know their workplace rights, and that puts them at a serious disadvantage. Have you ever experienced workplace discrimination? Would you know if you had?

Workplace discrimination can start during the hiring process, during promotions, during workplace drug testing, and even in the break room. We’re here to talk all about the basics of discrimination so you know how to handle it.

Read on to learn more.

What Protects Workers From Discrimination?

If you’re an employee, you are legally protected against workplace discrimination, but unfortunately, too many people don’t know their rights and some employers count on that fact so they can continue manipulating and mistreating workers.

There are a few protections in place, however, that you should know about.

Title VII of the Civil Rights Act protects employees against discrimination based on, for example, race, sex, religion, and nationality. This is a basic level of protection put in place in 1964.

The Equal Pay Act of 1963 aims to prevent sex-based wage discrimination. As long as the jobs require equal skill and the employee meets the requirements, an employer must pay them the same regardless of gender.

The Americans with Disabilities Act (ADA) protects employees with disabilities from discrimination. No employer may reject, fire, or otherwise, discriminate against an employee with a disability who is able to do their job. The employer must also provide reasonable accommodations.

New Jersey also has protections in place for employees. Included in this are the New Jersey Law Against Discrimination and the Diane B Allen Equal Pay Act. These are similar to federal protections, but they also add protection for things like civil union status, hereditary blood traits, ancestry, and more.

Types of Illegal Discrimination

So how do you know if you’re being discriminated against illegally? Discrimination, typically speaking, refers to protected classes. There are a few basic categories that you should know, however.

Age Discrimination

Legally, a workplace cannot discriminate against someone over the This means that an employer cannot favor an employee who is under 40 over an employee who’s aged 40 or older.

Note that in many states, this doesn’t work both ways. Employers may favor older employees and that isn’t considered age discrimination.

Race or Ethnicity Discrimination

It is federally illegal to discriminate against an employee due to their race, ethnicity, or the color of their skin. The law covers harassment, intimidation, and any other repeated behavior that’s deemed hostile. It also covers wage differences due to race, hiring or firing due to race, and more.

Discrimination Against LGBTQIA Workers

Discrimination against people in the LGBTQIA+ community has always taken place. It is, however, illegal for an employer to discriminate against an employee due to their sexual orientation. Title VII also protects workers who are transgender or nonbinary as it protects gender identity.

Gender Discrimination

It’s illegal for an employer to discriminate against someone due to their gender as long as they’re able to complete the task at hand. It is also illegal to pay employees differently due to their gender.

This also covers workplace sexual harassment.

Pregnancy can also be filed under this category. While many employers skirt the rules, it is illegal to refuse to hire a pregnant person exclusively because of their pregnancy. Similarly, it’s also illegal to fire someone due to pregnancy.

Disability Discrimination

As mentioned, the ADA protects workers with disabilities. This also includes workers who have conditions such as HIV or AIDS. Many employees aren’t aware of this.

Employers must provide reasonable accommodations for all employees with disabilities.

Can Workplace Drug Testing Be Discriminatory?

Workplace drug testing can be discriminatory.

It is legal for employers to require drug tests, but they must do so fairly. If an employer is singling out employees of a specific race, sexual orientation, or gender, that employer is being discriminatory.

Also, if an employer is using a drug test as a reason to fire an employee who is taking a legal prescription drug from their doctor, that’s illegal based on the ADA.

Employer Do’s and Don’ts

Employers should take care to avoid discrimination in the workplace. An employer also accepts responsibility for their employees, so if employees are engaging in discrimination, employers are expected to put a stop to it.

Some helpful employer “do’s” include:

Put essential tasks and requirements in job listings
Require anti-harassment and discrimination training
Ask all applicants the same questions
Check-in with employees
Respect cultural differences
Talk to a lawyer if you’re unsure

Helpful employer “don’ts” include (among others):

Don’t reject requests for reasonable accommodations
Don’t ask about details of someone’s disability
Don’t disregard discrimination complaints
Don’t tolerate workplace harassment

Employee Do’s and Don’ts

Are you an employee? What can you do to prevent or handle workplace discrimination?

While the bulk of the responsibility rests on your employer, there are a few things you should keep in mind. Here are a few quick employee “do’s”:

If you see something, say something
Respect everyone’s differences
Report harassment when you notice it
Record instances of harassment and collect evidence
Contact an attorney if you experience workplace harassment

So, with that in mind, what shouldn’t you do? Employee “don’ts” include:

Don’t tolerate harassment and discrimination
Don’t quit without contacting a lawyer

Getting legal help as soon as you recognize a problem is game-changing. Knowing your legal rights is empowering and can save your job or help your coworkers.

No One Should Deal With Workplace Discrimination

Discrimination in the workplace is against the law. If you or a coworker has experienced illegal discrimination during the hiring process, workplace drug testing, employee training, or elsewhere, it’s time to seek legal help.

We want to help you.

At McOmber McOmber & Luber, we have decades of experience supporting employees’ workplace rights. Contact us for a free consultation today.

Employee Rights in the Workplace: Losing or Leaving a Job

Did you know that the United States has some of the most relaxed labor laws in the entire world? The ability of a manager or business owner to fire you at will in the U.S. is quite uncommon when compared to many other countries in the world. These and other workplace environmental factors are leading to one in every five workers in developed nations quitting their jobs in 2022.

However, if you’re a hardworking American, you may not be aware of your employee rights in the workplace. State and federal laws may give you the relief you didn’t know you were owed. Keep reading this handy guide to learn more about your rights and how they affect job termination.

At-Will Employment

At-will termination is an important concept in U.S. labor practices. It means that an employer can fire you for whatever reason at a moment’s notice. It also means that you, as an employee, can leave without giving notice as well.

There are, however, many exceptions to this rule that allow employers and employees to sue someone if the employment is terminated wrongfully by either party. These exceptions include state laws, federal laws, and specialized employment contracts.

New Jersey State Protections

The first protection available to New Jersey employees applies specifically to state, county, and municipal workers. Under the New Jersey Civil Service Commission, government workers can appeal their termination if they believe the reason wasn’t adequate to warrant dismissal.

There are also specific instances in which New Jersey legislation and/or case law protects you from termination. One of the most important of these instances is wage-hour disputes. An employer is not allowed to fire you for raising any wage-related complaint.

Similarly, employers aren’t allowed to fire you for whistleblowing or over filing a worker’s compensation claim. N.J. state law protects you from losing a job in either of these scenarios.

In N.J., certain employee handbooks may also outline a process the employer should follow before your dismissal. If your employer hasn’t followed the outlined process, then a court may view the handbook as an implied contract and allow you to sue on grounds of a breach. However, if the handbook has a disclaimer stating that it should not be viewed as binding, then the court won’t view it as such.

Lastly, N.J. state law also protects employees against discrimination at the workplace. An employer is not allowed to fire you based on your sex, age, race, religion, or political background. State law makes it explicitly clear that gender identity and sexual preferences also fall under this protection.

Federal Law Protections for Employees

You’re also protected against discrimination by the Civil Rights Act of 1964. This protection applies to basic areas such as race or gender and to very specific protected factors like HIV status. The basic rule would be that employers aren’t allowed to base their treatment of you on an inalienable trait.

Sometimes you hear about someone getting fired for trying to make a change at the workplace. This also counts as unlawful dismissal under the National Labor Relations Act (NLRA).

This often comes up when an employee raises a safety issue, a wage complaint, or a concern about the workplace culture. Safety issues are also covered by the Occupational Health and Safety Act (OSHA).

If you get fired for a safety complaint, then you can sue. You’ll also be able to file a claim with the Occupational Health and Safety Administration.

Lastly, federal law entitles you to 12 weeks of family and medical leave. Employers aren’t forced to pay you for this time off, but they’re not allowed to fire you for taking time off to see to your health or your family’s needs.

Other Forms of Employee Protection

Workers’ unions often offer a contractual form of job protection to their members. If you’re a union member, your union’s contract with your workplace can protect you from random termination.

Some workplaces have such a strong union presence that non-union employees may even benefit from such contracts. If you work at a place where this may be the case, it may benefit you to investigate how much of the present union’s negotiating power favors your position.

When Can’t You Sue

When termination is justified, then you can’t sue for relief, but how do we know when that is? Firstly, broad financial reasons such as businesses cutting costs or business closings count as justifiable termination. Employees who lose their jobs during these times do not have the right to sue.

However, if your employer is downsizing for financial reasons, they may still be letting go of certain employees for discriminatory reasons. For instance, if the employer dismisses only people of a certain race, sex, or religious point of view, then you may have a discrimination case.

You may also run into trouble if you make an incorrect discrimination claim. For example, your employer may not fire you based on a physical trait, including disability. However, some jobs require that employees meet certain physical standards or capabilities.

If you’re involved in private security or construction and become severely ill or injured, the employer can let you go. This does not constitute discrimination because it relates to your job performance in that field. Such cases fall into the workers’ compensation category.

Consult an Expert on Employee Rights in the Workplace

Every employee has rights in the workplace, even in an at-will employment state. An employer is not allowed to make your life so miserable that you’d leave, nor are they allowed to fire you for a discriminatory or unfair reason. Even though N.J. is an at-will state, employees have far more legal rights than you may realize.

If you think you’re being targeted, treated unfairly, or unfairly dismissed, then you need reliable representation. We understand all the ins and outs of New Jersey labor law. Contact us today and find out how we can help you.

Your Rights in the Workplace: Wages and Overtime

The average worker in New Jersey made approximately $1,428 per week in the second quarter of 2022. Whether you made more or less than this, New Jersey workers have one thing in common. With very few exceptions, they’re protected by New Jersey State labor laws. This legislation defines and helps protect your rights to overtime, leave, and benefits. In this article, well explore your rights to wages and overtime. Knowing your rights can help you ensure you’re getting what you’re entitled to. If you are not, you may choose to consult with a knowledgeable employment attorney.

New Jersey Wage and Hour Law

New Jersey labor laws establish a mandatory state minimum wage. This currently stands at $14.13 per hour. Governor Murphy signed the minimum wage law back in 2019 and it will gradually raise the minimum wage to $15 by 2024.

The minimum wage has an impact on small business’ payroll. To lessen the impact on seasonal and small employers, they have until 2026 to reach $15 per hour. Currently, the minimum wage for this sector stands at $12.93.

Other exceptions include:

Agricultural workers – current minimum wage $12.01
- Rising to $15 by 2027
Long-term care staff – current minimum wage $17.13
Tipped workers – current minimum wage $5.26
- Tip credit is $7.87 – employers must make it up to the state minimum if this is not met with tips

Increases in the minimum wage are calculated based on rates set out in the State Labor Law or on the Consumer Price Index (CPI). The higher of these figures is taken each year.

Exceptions to the Minimum Wage Law

You may have heard that minors are not covered by minimum wage protection. However, there are many exceptions to this. Minors working in occupations such as retail, laundry, cleaning, and hotels are covered by minimum wage protection.

If you’re a minor and think you’re not covered, it pays to do some research. There are several occupations that are not exempt, so make sure you are getting the right wages.

Many salespeople are also exempt from the minimum wage law. However, if you work on commission, this is still considered earnings. Commissions income must at least reach the minimum wage, or the employer must top it up to meet the required level.

How Many Hours Should You Work Each Week?

Under the new legislation, a standard working week in most jobs is 40 hours. This means that you are entitled to overtime pay for every minute you work over 40 hours.

Can Employers Change Wages?

Under state law, employees are entitled to change their employees’ wages. They need to give you advance notice and it can’t be done retroactively. However, they may not reduce your pay below the state minimum wage if you are in a qualifying job.

Overtime Pay Rights in New Jersey

You are entitled to overtime pay at a rate of 1.5 times your regular hourly rate for every minute you work over 40 hours. The workweek is defined as a seven-day period. This means that your employer is not required to pay you more for working Saturdays, Sundays, or even holidays.

Exceptions from Overtime Law

State law allows for exemptions from overtime for certain roles. This includes:

Executive
Administrative
Professional
Outside sales capacity

Only roles that fall into these categories are exempt and employers must pay overtime at 1.5 times the standard hourly rate in all other cases.

Do’s and Don’ts for Employees

Employees may feel anxious about pursuing their rights. However, New Jersey law provides both rights and protections for you.

Do’s for Employees

Do talk to your employer if you feel that there is a discrepancy between what you are being paid and the state law. If your employer does not rectify the error, you may have the right to pursue a lawsuit to reclaim your unpaid wages. Consult with an employment attorney at McOmber McOmber & Luber.

Don’ts for Employees

Don’t assume that if you complain, you’ll lose your job. New Jersey law protects employees from retaliation if they raise a claim for unpaid wages. An experienced wage and hour attorney can help you navigate this process.

Do’s and Don’ts for Employers

As an employer, you have a duty to uphold the law. Here are some key do’s and don’ts to remain compliant.

Do’s for Employers

Do not feel that state laws on overtime pay mean that you can’t require your employees to work overtime. You still have the right to do this. All you have to do is abide by any agreements in place and pay employees the correct wages. Also, investigate each job in your company and find out what laws apply to each one. If you employ outside salespeople and clerical staff, the law is different for each. Do your homework to make sure you’re compliant.

If an employee has two jobs with your company with different hourly rates, overtime laws still apply. Calculate an average hourly rate based on the number of hours they’re contracted to perform each role. You must then use this average hourly rate to calculate the premium they are due. Consult with an attorney if you are unsure of your overtime obligations.

Don’ts for Employers

What if an employee approaches you and offers to work hours in excess of the standard 40 hours at their regular rate of pay? You can’t accept it – it’s illegal.

Even if both sides agree, the law still stands.

Also, don’t make any deductions from employee wages other than those permitted by law. Breakages or damage to company machinery may not be deducted from wages.

How the Wage Theft Act Affects You

The Wage Theft Act protects you if you are owed unpaid wages. Employers may not retaliate against you for making such claims. In addition, they need to pay your costs and attorney’s fees if you are successful.

You also have the right to join a class action lawsuit. An attorney who specializes in New Jersey wage-hour law is best placed to give you the right advice about whether you have grounds for a lawsuit.

How to Handle Questions About Wages and Overtime

If you are unsure about where you stand on the question of wages and overtime, talk to an attorney at McOmber McOmber & Luber. We work out of offices in Red Bank, Marlton, and Newark, N.J.

Our lawyers specialize in wage and hour cases. They’ll examine your case and help you to get the wages you’re entitled to.

Call us today at (732) 842-6500 or reach out online to schedule a free consultation.

Celebrating Black History Month

February is a very special month for us here in New Jersey as we use it to celebrate the achievements of African Americans throughout history. It is an opportunity to look back on the struggles of generations before us and acknowledge their courage, resilience, and dedication. We are honored to have a diverse group of people here at McOmber McOmber & Luber, and we are proud to join in the celebration of Black History Month.

The Meaning of Black History Month

Black History Month has been celebrated in the United States since 1976 when President Gerald Ford proclaimed it so. The month was originally intended as an opportunity for Americans to reflect on the accomplishments made by African Americans during this country’s history. This includes recognizing their contributions in politics, science, literature, culture, art, music, sports, and so much more.

During this month-long celebration, it is important that we recognize that while there have been many gains made over the years towards equality between races, there is still much work left to do. Racial discrimination continues to be a major issue across all facets of society today which means that we must keep striving towards creating a world where everyone can feel safe and included regardless of skin color or ethnicity.

Racial Discrimination in the Workplace

Racial discrimination in the workplace is an all-too common issue. Unfortunately, discrimination in any form at work can create a hostile and non-inclusive environment, which affects morale and productivity amongst employees.

Employers should take active steps to address discrimination in any form, while also creating policies promoting diversity and inclusion that help foster a supportive environment for everyone. Failure to act will only ensure discrimination remains alive in various facets of the workplace, stripping away opportunities from those who need it most.

McOmber McOmber & Luber Strives for Diversity in the Workplace

Here at McOmber McOmber & Luber, we believe that diversity is essential for success and growth. We strive to create an inclusive workplace where everyone feels welcome no matter who they are or where they come from. We are committed to hiring talented individuals from different backgrounds so that our team can better reflect the needs of our diverse customer base. Additionally, we provide educational resources about African American history both internally and externally so that employees can continue learning throughout the year.

This February marks yet another year celebrating Black History Month! Let us take this time to remember those who fought for civil rights in previous decades while also looking ahead towards creating a better future for everyone—regardless of race or ethnicity.

Illegal Interview Questions and Interview Discrimination

At a job interview, the job candidate and the prospective employer are there to talk about the job for which the candidate is applying, and it is possible to waste long hours on the Internet speculating about how to answer such vague interview questions as “Where do you see yourself in five years?” “What is your greatest weakness?” and “Do you have any questions for me?” Somewhere between talking about the job duties and the work schedule, you will probably end up making small talk with your prospective employer, and this small talk could play a prominent role in whether the workplace gives you a good or bad vibe. If the interviewer seems creepy, it could be that the questions they are asking really are illegal and are a gateway to employment discrimination. If you interviewed for a job and think that discrimination is the reason that you did not get hired, contact a New Jersey employment discrimination lawyer.

Which Job Interview Questions are Off Limits?

The law prohibits employers from basing hiring decisions on protected characteristics of a job candidate, such as race, age, gender, religion, or disability. In fact, interviewers should not even ask questions about protected characteristics during a job interview, because there is no way to separate the question from the hiring decision. These are some examples of interview questions that are off limits, because the only way a candidate can answer them is by giving information about a protected characteristic:

Where were you born?
Is that an Armenian (Korean, Somali, etc.) last name?
Do you have children?
Do you plan to become pregnant?
Which holidays do you celebrate?
What year did you graduate from high school?

It is acceptable for employers to test your language skills and physical fitness skills only as these relate to the job duties. The employer can only ask you to lift a 25-pound box if the job requires it. Likewise, the employer can test your reading or speaking skills in English or another language if the job description specifically requires a certain language proficiency level.

Disability Accommodations and the Job Interview Process

Federal and state employment laws require employers to make reasonable accommodations for employees with disabilities; an accommodation is reasonable if it does not cause undue financial hardship for the employer. The right to reasonable accommodations begins before the employee’s first day of work. If you will need an accommodation if hired, you have the right to access this accommodation during the hiring process, as well. In other words, if you will need to use a Braille keyboard and text to speech software at work, you also have the right to use it during pre-employment testing and during the onboarding and training process.

Contact a New Jersey Employment Lawyer About Job Interview Discrimination

An employment lawyer can help you if you have experienced job discrimination during the interview process or training before the job even began. Contact McOmber McOmber & Luber in Red Bank, Marlton, and Newark New Jersey to discuss your case.

Q: How Much Paid Sick Leave Can You Get?

A: New Jersey law requires *most* employers to give employees accrued sick leave, regardless of whether the employee is full-time or part-time. The Earned Sick Leave law specifies that as they work, employees earn one (1) hour of sick leave time for every thirty (30) hours work. The maximum amount of sick leave employees are entitled to is forty (40) hours per benefit year. Employers can provide additional time, above and beyond the Earned Sick Leave Law, should they so choose. Additionally, some employers choose to advance employees with the full forty (40) hours of sick leave at the beginning of each benefit year.

Q: Can I Use My Earned Sick Leave to Care for Family Members?

A: Yes. You can use your paid sick leave to attend to your own health or to attend to any close family member’s physical injury or mental health. The law also provides for the use of earned sick leave to address domestic or sexual violence, attend a child’s school-related meeting, conference, or event or take care of children when school or child care is closed due to an epidemic or public health emergency.

Q: What Happens to Unused Earned Sick Leave?

A: An employee may carry over up to forty (40) hours of unused earned sick leave to the next benefit year. However, employers are only required to let an employee use up to forty (40) hours of earned sick leave per benefit year. Some employees may choose to pay an employee for unused earned sick leave at the end of the benefit year (however, this is not required).

Q: How Does Medical Leave Work in New Jersey?

A: When an employee needs to take more than a sick day here and there and requires longer periods of time off, the employee may be eligible for leave under Federal and/or State law.

Federal employment law includes the Family and Medical Leave Act (“FMLA”), which provides up to twelve (12) weeks of unpaid leave in a twelve (12) month period for employees to recover from their own illnesses or care for family members who require care, including newborn and newly adopted children. Intermittent leave is also available in certain instances. In order to qualify, the employee must work for an employer that has fifty (50) or more employees within seventy-five (75) miles. Further, the employee must have worked a minimum of twelve (12) months with the employer and a minimum of 1,250 hours of work in the year prior to making the request.

New Jersey has its own counterpart to the FMLA, with a few significant variations. The New Jersey Family Leave Act (“NJFLA”) provides an employee with up to twelve (12) weeks of unpaid leave in a twenty-four (24) month period for employees to care for family members who require care, including for the birth of a child or adoption. Additionally, the NJFLA allows an employee to take time to provide required care or treatment for a child during a state of emergency if their school or place of care is closed due to a public health emergency. An important difference is that that NJFLA does not cover an employee’s own serious medical condition. Intermittent leave is also available in certain instances. In order to qualify, the employee must work for an employer that has at least thirty (30) employees or is a government entity, regardless of size. Further, the employee must have worked for that employer for at least one (1) year and a minimum of 1,000 hours during the last twelve (12) months.

Separately from unpaid time off, New Jersey offers Family Leave Insurance (“FLI”), which enables eligible employees to take up to twelve (12) weeks off of work to care for a family member who has a serious illness or injury or to care for or bond with a child within one (1) year of the child’s birth or placement for adoption or foster care. FLI pays employees 85% of the employee’s salary or wage up to a maximum that is set on a yearly basis. While employees should advise employers of their intent to apply for FLI benefits, application for FLI benefits is made directly to the State of New Jersey and the State of New Jersey determines eligibility for benefits. In some instances, employers have private plans. If an employee is unsure whether their employer has a private plan, employees should check with their human resources department. An important note is that it is currently unclear whether taking FLI provides job protection if an employee does not otherwise also qualify for NJFLA or FMLA benefits.

New Jersey also offers Temporary Disability Insurance (“TDI”) for an employee’s own serious illness or injury. Similarly to the FLI benefits, TDI pays employees 85% of the employee’s salary or wage up to a maximum that is set on a yearly basis. While employees should advise employers of their intent to apply for TDI benefits, application for TDI benefits is made directly to the State of New Jersey and the State of New Jersey determines eligibility for benefits. In some instances, employers have private plans. If an employee is unsure whether their employer has a private plan, employees should check with their human resources department. Further, it is against the law to retaliate against an employee for taking TDI.

Additionally, New Jersey employees may be eligible for accommodations under the Americans with Disabilities Act (“ADA”) and/or the New Jersey Law Against Discrimination (“NJLAD”) for an employee’s disability. In some instances, a short-term leave of absence may be an appropriate accommodation upon the expiration of FMLA benefits or in instances when the employee does not meet the requirements for FMLA leave. If you believe you require an accommodation under the ADA and/or the NJLAD, you should discuss the issue with your physician and make a request for an accommodation to your employer.

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